M.L. Jain, J.
(1) [FATHER of respondent 1 to 4 leased out tenanted premises to Bharat Insurance Co. in 1947. Latter allotted it to its sister concern, the appellant. On expiry of lease, appellant became a direct tenant on 1.2.56. Landlord on 30.4.66, terminated tenancy and on 30.7.69, sued for eviction on the ground of personal requirement and sub-letting. Controller orderd eviction on the ground of sub-letting. Tribunal upheld the order and appellant filed S.A.O.] After giving above facts judgment, pare 3 onwards is :
(2) As regards the validity of the notice of termination of tenancy it was urged that the notice did not fulfill the requirements of sec. 106, T.P.A. and thereforee, there being no valid determination of the tenancy, no eviction petition could be filed. Now, the Delhi Rent Control Act, 1958, was enforced with effect from 9.2.59 and the T.P.A, 1882 was evtended to the Union Territory of Delhi on 1.12.62 while the lease in question had come into existence as early as 1.2.56. It raises a question whether any notice to terminate such a tenancy was at all necessary before a petition for recovery of possession of the premises could be instituted. In Pawada Venkat Rao Vs C. V. Ramana : 3SCR551 [1976 Rajdhani LR.J Supreme Court in connection with the Andhra Pradesh Building (Lease, Rent and Eviction) Control Act, 1960, referred to its earlier decision in Raval and Co. Vs K.G, Ramachandraan, : 2SCR629 , and held that where the Rent Act provided the whole procedure for obtaining the relief of ejectment, the provisions of sec. 106 of the T.P.A. had no relevance. It distinguished Mangilal v. Sugan Chand : 5SCR239 , which had taken a contrary view in a case under the Madhya Pradesh Accommodation Control Act, 1955, that since under that Act the remedy of eviction was available by a civil suit, usual notice U/S 106 of the T.P.A. was necessary for the maintainability of the suit. It also approved Hem Chand v. Smt. Sham Devi, (1955) 57 Plr 441, which had held that no such notice was necessary for eviction under the Delhi and Ajmer Merwara Rent Control Act, 1947. There should be little doubt that the Delhi Rent Control Act was a self-contained Code and it had to be one such because when it was enacted, the Transfer of Property Act was not even in the field. Its provisions appear to be similar to the said Andhra Pradesh Act and also to the East Punjab Urban Rent Restriction Act, 1949, in respect of which no such notice was held to be necessary : vide Vinod Kumar v. Harbans Singh. 0043/1977 . By parity of reasoning I should think thereforee that sec. 106 of tfie T.P.A. would not apply to the Delhi Rent Control Act. But, in Rattan Lal v. Vardesh Chander , : 2SCR906 , decided three months earlier on December 9, 1975, it was held that a notice under sec. 106 of the T.P.A. was necessary before a petition under sec. 14 of the Delhi Rent Control Act could be filed even in respect of a lease that came about on May 19,1954. Now, there is an obvius conflict between , two Supreme Court decisions and the latter one should prevail even though the earlier decision specifically dealt with the Delhi Act. 1 should have made a choice but I leave the matter to be decided on some other occasion, for upon facts 1 consider that the notice in question substantially complied with the requirment of sec. 106 of the T.P.A.
(3) The notice terminated the tenancy with effect from 1.6.66 yet demanded surrender of possession on 31.5.66, but fifteen days were made available and, thereforee, the technicalities of sec. 106 of the T.P.A. need not effect the validity of the notice. As a matter of fact, it appears to me that the notice so served purports to terminate the tenancy with effect from the last day of May when the possession is demanded and it only purports to add that you are no more a tenant with effect from 1.6. 66 The objection to the validity of the noticeris not valid. The second notice served on Ap il 2, 1973, has no bearing on the case; vide Bhagbandas Agarwal v. Bhagwandas Kanu 1977 Rcr 754.
(4) The controversy mainly centures round the creation of sub-tenancy in favor of the aforesaid persons. Mast Ram was not inducted into the promises by the appellants. He was the Secretary of the Lahore Electric Supply Co. and a sub-tenant of the Bharat Insurance Co., as an employee of their associated concern. His employment was terminated in April 1953 A suit for possession was filed against him by the appellants in August 1956. He claimed that he was a tenant and the suit had to be withdrawn. Thereafter, the appellants filed an eviction petition against him on April 21, 1960 A compromise was reached in those proceedings on May 3, 1960, on which eviction was decreed on the condition that if he paid the arrears of rent, then the order of eviction shall stand cancelled. He paid the arrears. But, again defaulted. An application for eviction was made on April 18, 1961, but it was dismissed on September 25, 1961. In appeal, on the basis of a compromise, an order was passed on April 12, 1962, for the recovery of possession on the condition that if the condition that if the arrears were paid, he shall not be evicted. He defaulted for the third time. After notice of termination of tenancy w.c.f. April 30, 1963, was given, an application for eviction was made on June 5, 1963, The Controller directed eviction with which the Tribunal in appeal agreed. In the second appeal, Mast Ram died and though his legal representatives pursued that appeal, it was dismissed en May 14, 1970 Thus, it is proved that Mast Ram was not only inducted into the premises by the appellants but all this while they were trying to oust him from the premises, but because of the provisions of the Delhi Rent Control Act, they could not succeed. The whole case in respect of Mast Ram is based upon a statement of Company's attorney one Mitra, RW-14, in which he stated that Mastram was their sub-tenant. It appears to me that it is not sufficient on the basis of the statement of the attorney of the appellants to hold that a part of the premises was sub-let by the Bennett Coleman & Co. to Mast Ram, It is true that during the litigation Mast Ram was accepted as a tenant for the first time in 1951, and it may even. be considered a sort of a new lease as Wjs done in v. Satyanarayanaraju v. J, Hanumayamma. : 3SCR910 , but; it will still be improper to conclude there from as the learned appellate Tribunal has done that be agreeing to treat Mast Ram as a tenant in 1961. the appellants should be deemed to have created a subtenancy in his favor. This is something which happened in spite of them; and if the dictum of Muni Lal v. Barbara Singh, 1976 Raj Lr 83, is applied, then there was no sub-tenancy in existence any more on the date of the notice of termination, as whatever it was, it had come to an end in 1963. Apart from all this, as per sec. 16(i) of the Delhi Rent Control Act, 1958. Mast Ram being in occupation prior to 1952, he was a lawful subtenant. I, thereforee, reverse the findings of the learned appellate Tribunal in this respect.
(5) There is no doubt that the other two occupants Moti Sagar Jain and Ratan Sagar Jain were not employees of the appellants. It throws a heavy burden on the appellants to prove that they were not sub-tenants. Moti Sagar Jain was an employee of Sahu Jain & Co. when he was given premises on 16.12.62 He later on joined Alok Udyog, another sister company, and continued to live in some portion of the disputed premises but moved later on to the premises vacated by Sh. Akshaya Kumar Jain, an erstwhile employee of the appellants. R.S. Jain is yet another occupant since 1954. He was originally an employee of Asia Udyog Ltd. and later on of Sahu Jain & Co. He then joined Sahu Jain Services Ltd. and in 1968 his services were transferred to a!ok Udyog Ltd. All these are sister concerns, being owned by Sahu Jain Group. They also hold shares of the appellants, the Bennett Coleman & Co- The contention of the appellants is that no doubt Moti Sagar Jain and Ratan Sagar Jain are in excli sive possession of the residential portion allotted to them, and they also pay certain amounts of rent to the appellants, but they are not tenants and are mere licensees and can remain in the premises only as long as they are employees of a sister concern. The learned Tribunal held that on account of payment of rent and exclusive possession M. S. Jain has to be held as sub-tenant and the mere fact that he is an employee of the sister concern makes little difference. Same is the case with Ratan Sagar Jain. He has been even depositing rent under Sec. 27 of the Delhi Rent Control Act describing himself as a tenant of the appellant company, though when he entered the witness-box he described himself only as a licensee. There is no doubt that the Bennett Goleman & Co. is the tenant of the premises since the year 1956 and they were liable to eviction if it was proved that they sub-let the premises without the written consent of the landlord. There is apparently no consent no sublet, and the argument that there was an implied consent cannot salvage their case. It is also true that the Premises were to be occupied mainly by the officers and servants of the Bennett Coleman & Co., and the company was not itself going to reside in the premises. That was well-known from the start. It is equally true that even from the days of the Bharat Insurance Co. the premises were being let out to the employees of the allied concerns which were controlled by the Sahu Jain Group. It is further clear that both Moti Sagar Jain and Ratan Sagar Jain are not employees of Bennett Coleman & Co. They are no doubt employees of the sister concerns, but that does not protect them from the provisions of S. 14(1)(b) of Delhi Rent Control Act. The so- called sister concerns are separate legal entities and the facility of providing accommodation to their employees is no obligation of the Bennet Coleman & Co., and, thereforee, what the court has to determine is, whether they are still not tenants but are merely licensees. According to the definition of a tenant in sec. 2, cl. (1), any person by whom or on whose account or behalf rent is or would be payable is a tenant. It includes a subtenant, but excludes a licensee defined in sec. 52 of the Indian Easements Act, 1882, The decision thereforee rests upon the question, whether the cases of Moti Sagar Jain and Rattan Sagar Jain are covered by sec. 52 of the Easements Acts, 1882, Some English decisions were placed before me. But as said by the Privy Council in Hunsrai V. Bejoy Lal seal , before resorting to them for determining the relations of landlord and tenant, it should be seen what our own statute is. A lease according to sec. 105 of the Transfer of property Act is a transfer of a right to enjoy the property while according to sec. 52 of the Easements Act, 182, a license is a grant of a right to do something which, but for such grant, would be unlawful to do. Both, a lease and a liceance, thereforee, relate to a right. In case of a lease, it is a right to enjoy and in the case of a license, it is a right to do something which may include a right to enjoy. It is not possible to lay down one single -criterion to distinguish a license from a lease. Neither exclusive possession nor payment of rent, nor any nomenclature employed by the parties help to determine the issue. What finally matters is whether considering all the circumstances of the case, there was an intention to convey an interest in the property. This was so held in Board of Revenue V. A.M. Ansari : 3SCR661 . If that be so, then it is lease, and if that be not so, and a permission to reside is given, then it is a license, a sort of transaction personal in nature. Where a servant is required to live in the house in order better to do his job, or is permitted to live therein because of convenience for his work, he is a licensee, but if he is given en interest in the property separate and distinct from the contract of service, he is a tenant. One may refer to torbett v. Fauker, (1952) 2 T.LR. 659, and to B.M. Lal vs. Dunlop Rubber Co. (1968) 1 Scr 28, The courts below have upon a consideration of all the circumstances come to the conclusion that both Moti Sagar Jain and Rattan Sager Jain were lessees and not licensees. These are findings of fact and as held in Shri Raja Durga Singh vs. Tholu : 2SCR693 , and Smt. Kunti Devi v. Radhey Shyam, : AIR1978All185 , and Smt. Krishnawanti vs. Hans Rai 1975. RCJ. 164 these cannot be disturbed in this appeal unless an error on a substantial question of law is pointed out. The learned counsel for the appellants submitted that the learned appellate tribunal has fallen into an error of law by not applying the correct criterion, i.e. the intention of parties & it simply went by the criterion of exclusive possession and payment of rent. I am not impressed by this argument. It is not correct to urge that the learned appellate Tribunal simply applied the criterion of payment of rent and exclusive possession. The learned Tribunal has stated that payment of rent and exclusive possession would not by themselves be indicative of creation of any interest, but in the present case the circumstances clearly showed that the appellants did not retain legal possession and sub-leases had been created in favor of M.S. Jain and R S. Jain. There is an intention to convey the premises to them Allotment of premises to them was not for convenience of their work nor was it corn- pulsory for them to live in those premises for better performance of their work. They were not even their employees- A transfer of interest occurs where what the grantee acquires is a right which he could in his turn again lawfully transfer. Nothing has been shown that the occupants could not transfer the rights granted to them. I, there fore, do not feel persuaded to interfere with the findings of fact arrived at by the learned Tribunal.
(6) It was next submitted that the premises are mainly occupied by the seventy-two and odd hawkers of the Bennet Colemen & Co, and those hawkers could not be evicted simply because it has been found that two of the occupants were technically sub-lessees and not licensees. Mention was also made of the decision of the Supreme Court in Sant Ram v. Rajinder Lal : 1SCR900 , which was also a case of a dispute between a landlord and a tenant, and the Supreme Court applied the principle of interpretation derived from Mahatma Gandhi. The Supreme Court echoed : 'Recall the face of the poorest and the weakest man whom you may have seen, and ask yourself, if the step you contemplate is going to be of any use to him.'
(7) The hawkers are the real sufferers and the step taken by the courts below will hit them hard, I have considered over this aspect of the matter, but it is very difficult to uphold the contention. There is nothing in the Delhi Rent Control Act to suggest that if a part of the premises is sub-let, then a decree only in respect of such portion should be granted. It was also urged that the definition of a tenant includes a subtenant and thereforee the other seventy-two cannot be ousted. There is a fallacy in this submission because according to their own case, the Bennett Coleman & Co. does not claim that the hawkers are their sub-tenants nor is their case covered by any of the provisions of sec. 15 and sec. 16 of the Act. They are licensees and liable to be ousted even at the instance of the appellants as they do not enjoy the protection of the Delhi Rent Control Act. None of the hawkers has even cared to file an appeal. It should not be difficult for an organisation of the appellants to find suitable, if not more suitable, accommodation for its hawkers. The respondent on the other hand submitted that Prem Chand has broken his leg in a Car accident and it is necessary for his convenience that the ground-floor is available to him. This argument thereforee has to be rejected.